Judge slams asylum process decision-making

Source: Pretoria News, 17/07/2018

THE Gauteng High Court, Pretoria, has issued a scathing indictment of
the quality of administrative decision-making in South Africa’s
asylum-seeker process.
Handing down judgment in the matter of FNM v the Refugee Appeal Board
and Others, Judge AJ Dodson set out a scathing indictment of the
quality of administrative decision-making in South Africa’s asylum
seeker process.
The applicant was an asylum-seeker who fled from the conflict-ridden
eastern region of the Democratic Republic of Congo and sought refuge
in South Africa in 2013.
During his interviews before the Refugee Status Determination Officer,
the applicant was not provided with competent interpretation. As such,
much of the crux of his claim for asylum was lost, leading to the
rejection of his application.
The Refugee Appeal Board (RAB) further rejected his appeal without
providing him with a hearing despite the procedural irregularities
inherent in the initial process or applying an inquisitorial approach
to their decision making as required by law.
Lawyers for Human Rights launched these judicial review proceedings on
his behalf to challenge the procedural and substantive unfairness of
these decisions.
In his judgment, Judge Dodson chastised the RAB for failing to adopt
the requisite inquisitorial and facilitative approach in its interview
with the applicant, Also, for failing to make use of its full powers
under the Refugees Act. The courts have in the past criticised the
Department of Home Affairs for failing to give effect to asylum
seekers’ right to just administrative action and exercise the powers
afforded to it by the Refugees Act.
Judge Dodson also criticised the RAB for focusing only on information
which favoured the applicant’s return to the DRC, suggesting a
pre-determination of the outcome of his claim, before even affording
him a thorough hearing.
He also commented on the long delay in the administrative process as
the applicant applied for asylum in 2013 and was only given a decision
in late 2016.
“Having regard to the incompetence displayed by the Refugee Appeal
Board in its decision-making in this case, its apparent unwillingness
to apply the correct burden of proof and indications of bias in its
assessment of the country of origin information, it would be unjust
and inequitable to expect the applicant to place his fate once more in
the hands of the Refugee Appeal Board,” said the judge.
The court thus exercised its discretion and granted the applicant’s
prayer for substitution, directing that he be granted refugee status
and issued with the appropriate documentation. This case is
significant for the development of refugee and administrative law in
South Africa, demonstrating that SA courts are willing to grant an
extraordinary remedy like substitution, where the apex of
administrative decision making fails to assist one of the most
vulnerable sectors of society.
Lawyers for Human Rights (LHR) head of strategic litigation Wayne
Ncube said: “We welcome this judgment and hope Home Affairs and the
Refugee Appeal Board take the critiques raised by Judge Dodson to
heart and begin to discharge their duty to asylum seekers in earnest.
“Many asylum seekers face similarly flawed adjudication processes with
regards to their asylum claims and do not have access to legal
representation to pursue fair administrative justice through our court
system.
“The department and Refugee Appeal Board need to conduct thorough,
unbiased enquiries into the claims lodged by persons fleeing heinous
circumstances and persecution in their home countries otherwise people
will face refoulment.”
Many asylum seekers face similarly flawed adjudication processes with
regards to their claims LHR’s Wayne Ncube